In April of 2008, the California Supreme Court in Johnson v. American Standard, Inc. 43 Cal. 4^th 56 (2008) recognized the “sophisticated user” doctrine as a defense to both negligence and strict product liability claims based on failure to warn. The doctrine shifts the duty to warn from the manufacturer or supplier onto the “sophisticated” user who is assumed to be aware of the risks as a result of his or her experience with the product.

Although California Supreme Court in Johnson did not define how much experience the user must be to be “sophisticated”, it is clear that a surgeon, doctor or dentist is the learned intermediary between the manufacturer-supplier and the patient and would be recognized as a sophisticated user who assumes the duty to warn his patient. The courts assume the doctor will either make the appropriate medical decision based on her knowledge of the risks or will pass the warnings on to the patient to make an informed decision.

The Johnson case is the latest in a trend of decisions that act to relieve the manufacturer of a duty to warn the ultimate user (patient) and place that duty on the doctor since the courts correctly assume the doctor is in a superior place to warn the patient who is about to receive treatment and as a knowledgeable professional, he is assumed to know of the dangers and risks in providing such a medical device or treatment regime.

The duty to warn is an outgrowth of the basic right of informed consent for a patient as set forth originally in the 1972 seminal case of Cobbs v. Grant which requires the medical professional to disclose all information relevant to a “meaningful decisional process”. While this might still be the law for the medical decision of whether to perform a particular procedure or not, as a practical matter, can a doctor or dentist, in today’s era of specialization, provide enough information and education to the patient to sufficiently warn a patient and allow that  “meaningful decisional process” to take place as to how that procedure or treatment would take place? As a practical matter, can a doctor involve the patient in the decision making process of which medical device to use?

In reality, the duty to warn and educate as to alternative treatment procedures has become a duty for the dentist or doctor, as a knowledgeable professional, to simply choose the correct device or technique for the intended treatment and to make that decision for the patient based on the current state of medical knowledge.

In essence, the courts will place upon the medical practitioner the duty to stay current with the medical literature in her field of expertise. She will be expected to know of any new product or technique that significantly lowers patient risk as reported in the applicable peer review journals as such a report adds to the collective awareness of the specialist’s area of expertise.

In 2001, a male patient sought treatment from a dentist in San Diego for a root canal treatment. The dentist used sodium hypochlorite solution to clean the root of the tooth and the solution was applied using a positive pressure syringe (not unlike the pressure of a garden hose, but lesser) to inject sodium hypochlorite into the tooth’s root area. However, that typical practice of irrigation under positive pressure in 2001 carried with it the risk of extrusion of the sodium hypochlorie into nearby tissues. If the sodium hypocholite is extruded into surrounding tissue, it interacts with blood vessels and nerves that run in the adjacent tissue. Depending on the amount and concentration, within seconds, the capillary beds rupture producing mild to severe internal hemorrhage resulting in tissue swelling and discoloration. The associated pain varies from mild to severe, and sometimes the nerves undergo a toxic reaction causing the nervous system to be affected in both their control and sensory functions

In the San Diego case, a small amount of the solution escaped from the root canal and entered the apical tissues surrounding the tooth. The plaintiff’s face became immediately swollen and remained so for weeks, causing his eyes to be nearly shut and bruising under his eyes. The plaintiff, the father of young children, had to wear a mask so as not to frighten his children.

At trial, the dentist contended the plaintiff was made aware of the risks of sodium hypochlorite and his experts testified that, as of June, 2001, such an accident was rare and the defendant dentist could not have taken precautionary measures before administering the solution as no alternative technique had yet been identified. The jury found for the dentist. The question is whether such a legal result would be obtained in 2009 in the face of new devices or precautionary measures identified in peer review literature available to the dental practitioner.

It is medically accepted that sodium hypochlorite is safe when limited to the root canal; however, beyond the confines of the root canal, it is extremely toxic to all tissue. Furthermore, the aforementioned hemorrhage can lead to blood clot(s) and infection. While the nervous system failure is a rare occurrence, the injury and resultant physical deformity to the patient can be catastrophic in that the consequential permanent alternation affects the most important and unique physical feature of a person, their face. In addition, the life threatening risk of airway obstruction associated with hypochlorite extrusion during root canal treatment has been reported.

From 2002 through early 2009, a number of peer review articles have pointed out that the use of positive pressure to deliver the sodium hypochlorite in root canal irrigation produces these significant risks that include severe pain, edema, numbness, scarring, and even life-threatening airway obstruction. Not only have these published articles identified the risks of the positive pressure in the use of sodium hypochlorite, they have identified an alternative technique that totally minimizes or eliminates such a serious risk. That technique is the use of negative pressure and these journal articles have also identified a product that provides negative pressure while irrigating to eliminate these risks. The products are commercially available at a cost of about eight dollars ($8).

The Judge in the San Diego dental malpractice case followed the typical procedure to provide the law to the jury in the form of standard jury instructions at the close of the case. Those legal instructions included  that the dentist has the affirmative duty to present information as to the risks and benefits of the root canal treatment, including the use of sodium hypochlorite, to obtain the patient’s informed consent. At that time, there was no argument of an alternative in the manner in which the sodium hypochlorite was delivered to the patient.

Had there been such an alternative delivery method commercially available in 2001 that had different or lesser attendant risks, the patient’s attorney could have argued for the jury to consider whether the patient was given that information, including the minimal cost, and been given the opportunity to choose between the different delivery techniques.  Where the medical practitioner would have been aware of the greater or lesser risks had she merely read a widely distributed journal in her area of expertise, and thereby be informed of the decreased or absent risk of a new device, that doctor has the affirmative duty to discuss that product with the patient. Alternatively, has medical science progressed to the degree of specialization that the doctor has the duty to simply select the new, lesser risk device?

An example of such an newer medical device recently described in the peer review literature is the EndoVac delivery system for endodontic irrigation. Previously, the device utilized for irrigation in the root canal was a simple syringe to introduce sodium hypochlorite into the root canal for irrigation and debridement, an important and standard part of endodontic treatment. While the occurrence of sodium hypochlorite extrusion is uncommon, under any analysis of product liability law, the EndoVac would be the preferred alternative device. It is superior in that, for a minimal cost, it does not sacrifice treatment efficacy and eliminates the risk of severe debilitating injury that can occur from sodium hypochlorite extrusion from positive pressure.

Suppose, in 2009, a jury in a case of a sodium hypochlorite extrusion accident is informed of a new device that has come into the awareness of the dental endodontic specialty by way of standard specialty journal articles. The device is described to irrigate the root canal under negative pressure, thereby drawing up all of the hypochlorite and totally removing the risk of the leakage or extrusion of the hypochlorite into nearly tissues.

The defendant dentist’s expert witness will be forced to admit that the safety and efficacy of this device, the EndoVac, that has been promoted in peer review articles of basic research as well as key journals of their endodontic specialty. The defendant dentist testifies that he made the patient aware of the risks of sodium hypochlorite but admits on cross exam that he choose not to utilize the EndoVac device or make the patient unaware of availability of the device at a minimal cost.

The jury in the two-week trial glances over to plaintiff’s table, where this thirty-five year old mother of two sits in silence. She is attractively dressed, slim, nicely cut hair but has a very distinctive loss of tissue in her left cheek, even after several unsuccessful surgical attempts to correct the deformity. She drools but cannot feel it to wipe it off until her attorney notices and quietly mentions it to her.

That afternoon, the case is coming to a close and the doctor’s expert endodontist, testifying for the defense, admits to having read about the EndoVac and the benefits of such a negative pressure device at a minimal cost of eight dollars. The next morning, the jury is instructed by the judge that under the current law, doctors and dentists have an affirmative duty to either make the appropriate medical decision based on their knowledge of the risks of treatment or must pass the warnings on to the patient to make an informed decision.

When the jury retires to the sanctity of the jury room and discussions begin as to liability of the defendant endodontist, how long will it take before the jury foreperson polls his fellow jurors as to whether this dentist fulfilled her duty to choose the more effective medical device of the negative pressure EndoVac or, as required, warned the patient that this eight dollar device would have alleviated the risk of severe tissue and neurological injury? Will the outcome of that polling result in another verdict for the defense?

Robert Rochelle is an ABOTA trial attorney who has been lead counsel in trials in San Diego, Santa Ana and Riverside Superior Courts and Federal District court.  Practice areas include medical malpractice, probate and trust matters, elder abuse, fraud, personal injury and sexual harassment.

It is true that a Statement of Infomation must be filed annually for most corporations and biannually for most limited liability companies.   However you can do it for $20-$25 on your own.  Also, if you do submit paperwork through one of these filing companies, unless the form makes its way to the Secretary of State and is in a form they accept, you are not in compliance.

You are able to download the forms free through the Secretary of State web site at:

http://www.sos.ca.gov/business/be/statements.htm.

The fee required to file the statement is $25 for California stock and foreign corporations, and $20 for California nonprofit corporations and all limited liability companies. Also, the Statement of Information can be submitted for filing directly by mail to Secretary of State, Statement of Information Unit, P.O. Box 944230, Sacramento, California 94244-2300, in person at 1500 11th Street, Sacramento, California, 95814, or, for most corporations, by using a credit card through the internet at https://businessfilings.sos.ca.gov/.

FOR MORE INFORMATION SEE LINK BELOW:

http://www.sos.ca.gov/business/be/alert-misleading-solicitations.htm

Take a moment to review this article to see if you should consider completing an estate plan; the benefits you and your family will enjoy once your plan is in place; and, how to go about completing your estate plan.

Do I need Estate Planning?

I have found that almost every adult needs some sort of estate planning. Take a moment to take my 30 second test to see if you are a candidate:

Yes	No
		Do you have children?
		Are there specific persons that you prefer to inherit your assets?
		Is it important for you to select for yourself who will make health care decisions for you if you are unable to do so.
		Do you own real estate?
		Is it important to you to pass on as much of your estate as possible to children or others?
		Would you like to avoid having the courts make decisions about you, your estate, or your children?

IF YOU ANSWERED “YES” TO ANY OF THE PREVIOUS QUESTIONS, YOU NEED ESTATE PLANNING!

What is Estate Planning?

“Estate planning” involves planning for the continued management of property during ones life and after as well as planning for the distribution of property after death; providing for the care of minor children; and making a plan regarding personal health care issues in the future. Estate planning encompasses more than just the preparation of a will. It should also include financial, tax, medical and business planning, necessary for a families future.

Minor Children

A properly prepared estate plan will allow the parent to select who they want to serve as guardians for minor children. Guardians are the people who the children will live with and who are the providers of care, love, nurturing and guidance as the children grow into their adulthood. Without an official selection by the parent, the court will decide who shall have the physical care and custody of minor children. Further, without an estate plan, the court (not the parent) will also decide who will manage the inheritance of minors. Of greater concern is the fact that without a plan a child will gain complete control over his or her entire inheritance at age 18. Through an estate plan, a child’s inheritance can is managed by a person the parent selects and assets can be available at all times for the child’s health, education, and welfare, with the remainder to be distributed in intervals or at a time when the child is more mature.

Owners of Real Estate

Without proper planning, inherited real estate must go through expensive probate proceedings to pass to heirs, which will substantially diminish the value of the inheritance. Probate is a court-supervised process that legally transfers ownership of property from the deceased to his or her beneficiaries. Real estate held in a living trust can transfer to beneficiaries without costly probate proceedings. Efforts to avoid probate by holding title with a spouse or children as joint tenants can be costly as there is the loss of the right to step up the basis in the property upon the death of a joint tenant. This can cause unnecessary capital gains taxes that could be avoided with some simple planning. In addition there still would be a probate proceeding required when both joint tenants died.

Other Assets

It is not just real estate. The same holds true for other assets one may want to pass to heirs. Without a trust as a part of an estate plan, other assets held or controlled by third parties such as banks, stock brokers or business partners could be subject to expensive probate proceedings. Third parties usually will not release assets they hold that are in the name of a decedent without a court order.

To Designate Who Receives the Estate:

Without a comprehensive estate plan that includes a living trust, a probate proceeding is usually required. When there is a death without a will and the estate is over $100,000, the court will distribute the assets according to a distribution plan set up by state legislators. Often the legislative plan would not be how one would choose to distribute their estate. Even with a will, the matter must still go through the probate courts. A will only states who gets the assets. The probate court must still be used to pass clear title to assets or to gain possession of assets from third parties (banks, stock brokers, etc.).

Living Trusts Avoid Probate:

The proper use of a trust will avoid probate, Probate proceedings are expensive, open to public scrutiny, and can take over a year to conclude. For example, an estate worth $500,000 would have minimum attorney and executor fees of approximately $26,000. With an estate valued at $1,000,000 the fees would be approximately $62,000.

Minimize Taxes:

In some cases, the use of a trust can also provide a means to minimize estate taxes for married couples. The actual amount of tax savings could be hundreds of thousands of dollars depending on the value of the estate at the time of death and the estate tax exemption amount for that year. Current law allows for one to pass up to $2,000,000 without estate taxes and increases the exemption amount to $3,500,000 in 2009. In 2010 there is no estate tax. However, unless changed by congress and the then current sitting President, the exemption reverts back to allowing each person to pass only $1,000,000 without estate taxes for a death on or after 2011. Without a properly prepared living trust, when one spouse dies and leaves the estate to their spouse, there is no estate tax at this point but the surviving spouse can only use their own credit on his or her death and the credit of the first spouse to die is lost. However, with a properly prepared living trust, a married couple can pass on twice as much as provided above by taking advantage of both spouses estate tax exemption.

To Appoint An Agent To Make Health Care Decisions:

An estate plan should include an Advanced Health Care Directive. This document allows one to appoint a trusted person to make health care decisions for another during any period of incapacity. It also advise that person of any specific desires one may have with regard to the use of life sustaining treatment or the withholding of life sustaining treatment under certain dire circumstances such as an irreversible coma.

SOUNDS GREAT – WHAT DO I DO NOW?

The key is to get started! To do so the first step is to make an appointment with an attorney. Estate plans are too important to be left to paralegals or computer programs. I have found that the hardest part of estate planning is making the appointment. Don’t wait until you have all your paperwork and files organized as you may not need all you think you need to get started. After an hour and a half meeting with an attorney you will understand the process, make selections of who will be involved in your plan, decide who will receive your estate and when, and address important health care questions. Most important, you be on your way to having peace of mind knowing that you have taken care of this important planning task for you and your family. Services for California residents only.

TITLE TO PROPERTY: The most common ways to hold title to property are as follows:

A. Sole and Separate Property: Used by a single person or by a married person who identifies the property as his or her own separate property with their spouse having no community property interest therein. On death, in order to pass title to heirs, the property must pass through expensive and time consuming probate court proceedings as discussed below.

B. Community Property: Used by married persons with each spouse having an equal undivided interest in the property. The death of one spouse may cause his or her interest to go through expensive probate proceedings. There is a step up in basis on the entire value of the property to the fair market value on the date of the death of the first spouse. On the death of both spouses the property must still pass through expensive and time consuming probate court proceedings to transfer to heirs.

C. Community Property with Right of Survivorship: A new way to hold title in California, this is used by married couples and transfers, without probate, a deceased spouses interest in real property. There is a step up in basis on the entire value of the property to the fair market value on the date of the death of the first spouse. On the death of the second spouse the property must pass through probate court proceedings to pass to heirs.

D. Joint Tenancy: Used by two or more owners who each have an undivided equal interest in the property. Join Tenancy has a right of survivorship which allows the transfer of title to property held by a deceased joint tenant to the surviving joint tenant(s) without probate. There is a step up in basis only with respect to the deceased owners ownership portion to the date of death fair market value of the property. Thus where married couples own property as joint tenants, they only receive a one half step up in basis on the property where they would have received a full step up in basis if they held the property as community property. The death of all joint tenancy owners will cause a probate. Also often this is used to try to transfer title to a spouse or children at death. However be advised that if a parent adds a child as a joint tenant during their life, the child will get the property without probate at the death of the parent but the child will obtain the cost basis the parent had in the property. As a result, when the property is sold, there could be significant and unnecessary capital gains taxes to be paid by the child.

E. Tenancy in Common: Used by two or more owners who may have different ownership interests in property. A death will cause a probate of the deceased owners interest.

F. Title Holding Trust: Used by single or married persons who create a living trust and hold title in their names as Trustee(s) of their trust.

BY FAR THE MOST BENEFICIAL WAY TO HOLD PROPERTY IS IN A LIVING TRUST. HERE’S WHY:

YOU PICK WHO GETS YOUR HOME UPON DEATH: Trusts act similar to a will in that it names who gets your home and other assets when you are gone and when. Holding title to your home and your other assets in your trust subjects them to your plan of disposition at death. Failure to state a plan could pass your home and other assets to people who you do not want to inherit them. A simple will alone could do the same but your home will still likely have to go through the probate court process upon death to transfer title to your heirs.

HOLDING TITLE OTHER THAN IN A TRUST MAY RESULT IN PROBATE: In all cases of a death of someone holding title as their sole and separate property and in most other forms of holding title other than in a trust, the death of both spouses will cause the home and other assets to go through expensive probate proceedings.

AVOIDS HIGH COST AND PITFALLS OF PROBATE: Assets held in a trust avoid probate court proceeding at death. Upon death, the Trust will allow you to pass on your home or proceeds after sale as well as you other assets to your named beneficiaries without going through the probate process. Tens of thousands of dollars are lost to legal and executor fees by failing to hold title in the name of a trust. The amount of probate fees varies according to the gross value (including the fair market value of real estate) of the estate. For example, an estate worth $500,000 would have minimum attorney and executor fees of approximately $26,000. With an estate valued at $1,000,000 the fees would be approximately $62,000. As a result, any homeowner in Southern California will certainly fall within or exceed these amounts, which quickly illustrates why it is important to plan now to avoid probate.

EASE IN MANAGEMENT IF INCAPACITATED: Your home and other assets will be managed by your spouse serving as co-trustee (if married) or a successor trustee that you pick, if you are unable to handle your affairs for any reason such as health, incapacity or death.

TAX BENEFITS: Inheritance taxes on the assets (including real property) passed to beneficiaries can be reduced or eliminated with a proper living trust. Tens and even hundreds of thousands of dollars can be avoided with larger estates.

STEP UP IN BASIS: Married couples holding title in their trust as community property enjoy a step up in basis from the purchase price to its then fair market value of the entire home at the death of one spouse. Further it is generally better to inherit property than to receive it as a gift during life. Inherited property gets a step up in basis. Property received as a gift during life passes the same basis on to the recipient of the gift. By passing property though a trust versus a gift during life, the recipient will enjoy a step up in basis, will reduce or avoid capital gains taxes on the inherited property if it is later sold, and will receive the property without having to go through probate.

SOUNDS GREAT WHAT DO I DO NOW: The key is to get started! To do so the first step is to make an appointment with an attorney. Estate plans are too important to be left to paralegals or computer programs. I have found that the hardest part of estate planning is making the appointment. Don’t wait until you have all your paperwork and files organized as you may not need all you think you need to get started. After an hour and a half meeting with an attorney you will understand the process, make selections of who will be involved in your plan, decide who will receive your estate and when, and address important health care questions. Most important, you be on your way to having peace of mind knowing that you have taken care of this important planning task for you and your family. Services for California residents only.

HOW SHOULD YOU HOLD TITLE TO YOUR HOME?

Our Title Solutions Program offers complimentary consultation with an experienced attorney to help you make an informed decision on how best to hold title to your home.

SELECTING HOW TO HOLD TITLE IS AN EXTREMELY IMPORANT DECISION

There are numerous ways in which people can take title to their property.

Some of the most common ways to take title are:

• Trustees of a living trust
• One’s individual name
• Tenants-in-common
• Community property
• Joint tenants
• Community property with right of survivorship

There is no “one size fits all” alternative when selecting how to hold title. What is right for friends and family may not be right for you. Advice from an experienced professional is vital in making this important decision.

POSSIBLE CONSEQUENCES OF HOLDING TITLE IMPROPERLY

Many unexpected and costly results can occur when holding title improperly.

Some examples are:

• A wrong or unintended person could inherit your property
• Your family could lose tens of thousands of dollars through costly, lengthy probate court proceedings
• Your family could incur significant capital gains taxes from a loss of a step up in basis
• Significant estate taxes may be required to be paid if safeguards are not in place
• Expensive court proceedings may be required if an owner becomes incompetent

HOLDING TITLE IN A LIVING TRUST

In most cases, the best way to hold title to your home would be as a Trustee of your own Living Trust. A Living Trust is an agreement between you as the owner of your assets and you as the manager of your assets. A personalized estate plan which includes a living trust will allow you to:

• Properly title your home and other assets
• Appoint trusted guardians for minor children
• Avoid or reduce estate and capital gains taxes in some cases
• Direct who inherits your assets
• Avoid costly probate proceedings
• Appoint a trusted person to legally manage assets for you and your children, if you are unable

TITLE TO INVESTMENT REAL PROPERTY

Often the best way to hold title to investment real property is in a limited liability company. A limited liability company is a legal entity established through the state. Title to real property is placed in the company which is in turn owned by members. To receive the same benefits as outlined above, membership interests in the limited liability company are held in the Living Trust.

ESTATE PLANNING – TITLE SOLUTIONS SERVICES

In addition to providing a complimentary title solutions review, the Law Offices of Rochelle & Griffith, LLP also offers comprehensive estate planning services. Services include the preparation of living trusts, wills, powers of attorney, advanced health care directives and documents to properly title your home in your living trust. We also can establish limited liability companies to hold title to investment real property if appropriate.

SOUNDS GREAT – WHAT DO I DO NOW?

The key is to get started! To do so the first step is to make an appointment with an attorney. Estate plans are too important to be left to paralegals or computer programs. I have found that the hardest part of estate planning is making the appointment. Don’t wait until you have all your paperwork and files organized as you may not need all you think you need to get started. After an hour and a half meeting with an attorney you will understand the process, make selections of who will be involved in your plan, decide who will receive your estate and when, and address important health care questions. Most important, you be on your way to having peace of mind knowing that you have taken care of this important planning task for you and your family. Services for California residents only.